White v. Mazda Motor of America, Inc. ( 2014 )

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ROLAND TODD WHITE v. MAZDA MOTOR
OF AMERICA, INC., ET AL.
(SC 19088)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued October 29, 2013—officially released September 23, 2014
Alexander J. Sarris, with whom, on the brief, was
Frank J. McCoy, Jr., for the appellant (plaintiff).
Paul D. Williams, with whom, on the brief, was John
W. Cerreta, for the appellees (named defendant et al.).
Brenden P. Leydon filed a brief for the Connecticut
Trial Lawyers Association as amicus curiae.
Cristin E. Sheehan and Jonathan M. Hoffman, pro
hac vice, filed a brief for the Product Liability Advisory
Council, Inc., as amicus curiae.
Opinion
ZARELLA, J. In this certified appeal, we consider
whether the plaintiff, Roland Todd White, preserved for
appellate review a claim under the malfunction theory
of products liability. The malfunction theory allows a
plaintiff in a product liability action to rely on circum-
stantial evidence to support an inference that an
unspecified defect attributable to a product seller was
the most likely cause of a product malfunction when
other possible causes of the malfunction are absent.
See generally Metropolitan Property & Casualty Ins.
Co. v. Deere & Co., 302 Conn. 123, 131–33, 25 A.3d
571 (2011). In the present case, the plaintiff initiated a
product liability action against the defendants, Mazda
Motor of America, Inc. (Mazda), and Cartwright Auto,
LLC,1 after his Mazda3 sedan caught fire on the side of
the highway approximately one month after the plaintiff
purchased the vehicle and had driven it about 2800
miles. The trial court granted the defendants’ motion for
summary judgment after the plaintiff failed to produce
competent expert testimony to support his claim that
a specific defect in the vehicle’s fuel system caused the
fire and that the fire was the proximate cause of the
plaintiff’s injuries. On appeal to the Appellate Court,
however, the plaintiff principally claimed that he could
prove his case by claiming the existence of some
unspecified product defect under the malfunction the-
ory of products liability. See White v. Mazda Motor of
America, Inc., 139 Conn. App. 39, 46–47 n.9, 54 A.3d 643(2012). The Appellate Court, with one judge dissenting,
determined that the plaintiff had not raised the malfunc-
tion theory in the trial court and thus did not preserve
it for appellate review. See id., 47 n.9; see also id., 51(West, J., dissenting). After concluding that the plaintiff
did not support his specific defect claim with competent
expert testimony, the Appellate Court affirmed the trial
court’s judgment. Id., 50–51.
The plaintiff filed a petition for certification to appeal,
which we granted, limited to the following issues. First,
‘‘[d]id the Appellate Court properly conclude that the
plaintiff had failed to raise the malfunction theory claim
at trial?’’ White v. Mazda Motor of America, Inc., 307
Conn. 949, 60 A.3d 741 (2013). Second, ‘‘[i]f the answer
to the first question is in the negative, did the plaintiff
present a prima facie case under the ‘malfunction the-
ory’ of products liability?’’ Id., 950. Because we agree
with the Appellate Court that the plaintiff did not pre-
serve his malfunction theory claim for appellate review,
we answer the first certified question in the affirmative
and do not reach the merits of the plaintiff’s claim under
the second certified question. Accordingly, we affirm
the judgment of the Appellate Court.
I
In the predawn hours of a mid-November morning
in 2006, the plaintiff, who worked a night shift, left work
after his shift ended and began his sixty mile commute
home, driving alone on Interstate 395 in his Mazda3
sedan. The plaintiff had purchased the vehicle, new,
approximately one month earlier and had made the trip
between his home and work about forty times, for a
total of about 2800 miles. The ride home that morning
was uneventful, at least for the first forty-five miles. At
that point, the plaintiff smelled gasoline and pulled over
to the shoulder of the highway to investigate. Other
than the gasoline smell, the plaintiff did not observe
anything unusual about the vehicle’s condition, gauges,
lighting, or switches, and did not feel any heat or see
any smoke. After pulling over, the plaintiff opened the
hood to look at the engine, and saw a ‘‘flash’’ and ‘‘slight
explosion’’ that caused him to fall backward. The plain-
tiff was not burned, but he did injure his left knee during
his fall and was later treated. The engine caught fire, and
the local fire department responded and extinguished it.
Prior to the fire, the plaintiff had no problems with the
vehicle, did not complain about it to anyone, and was
satisfied with its operation.
The plaintiff later brought this action against the
defendants to recover for the injuries to his left knee.2
The plaintiff alleged that a defect within the vehicle’s
fuel system caused a fire or explosion in the engine
that, in turn, caused the plaintiff to suffer ‘‘from pain
and injuries to his left knee and left leg, all of which
were caused by the accident or were the result of an
aggravation of a preexisting condition.’’
The plaintiff alleged a number of reasons why the
vehicle was defective, which the Appellate Court sum-
marized as follows: ‘‘(1) the fuel lines on the fuel rail
of the vehicle were pressed onto the fitting at the fuel
rail in such a way that a fuel leak occurred and caused
a fire; (2) the fuel lines were installed or secured with
clamps improperly, which caused damage to the lines,
resulting in a fuel leak and a fire; (3) [Mazda] negligently
installed the fuel lines on the vehicle in an incorrect
manner, causing a fuel leak and a fire; (4) [Mazda]
negligently failed to design the vehicle and its compo-
nent parts so that it would not be a hazard to a consumer
purchaser; (5) the defendants negligently failed to test
or inspect the vehicle and its component parts; (6) the
defendants manufactured or sold the vehicle with defec-
tive component parts or a defective engine, thereby
causing a hazard to users of the vehicle; (7) the defen-
dants failed to warn the plaintiff of the aforesaid condi-
tions; (8) the defendants breached their statutory war-
ranty of merchantability in that the vehicle was not fit
for the ordinary purpose for which it was sold; and (9)
the defendants sold the vehicle in a defective, unsafe
and dangerous condition, thereby subjecting the plain-
tiff to an unreasonable risk of injury.’’ White v. Mazda
Motor of America, Inc., supra, 139 Conn. App. 41–42.
During discovery, the plainitff disclosed a proposed
expert witness, Richard E. Morris, who would testify
that the incident involving the plaintiff’s vehicle was
caused by a specific malfunction in the vehicle’s fuel
system. According to the disclosure, Morris, a fire inves-
tigator, would ‘‘testify that he conducted an origin and
cause fire investigation of the plaintiff’s vehicle’’ and
that he ‘‘may opine that the plastic clips and/or gasket
that held the supply lines into the fuel rail were inade-
quately designed, constructed and/or installed.’’
According to the plaintiff’s disclosure, Morris ‘‘further
concluded that the plastic clips easily disengaged to
allow the fuel line to slip off and allow free gasoline to
leak into the engine.’’
The defendants later deposed Morris, who concluded
that a poorly designed fuel clip or gasket in or on the
vehicle fuel line failed and caused the fire. The trial
court observed, however, that Morris had testified that
he was ‘‘not an expert in automobile mechanics, auto-
mobile electronics, the design or manufacture of any
automobile components related to fuel lines, [or] the
design . . . or the manufacture of automobiles.’’ In
addition, and significantly, Morris declined to offer an
opinion about whether the plaintiff’s vehicle was
defective.
On the basis of the allegations in the pleadings and
the facts disclosed during discovery, the defendants
filed a motion for summary judgment. In their motion,
the defendants made two distinct arguments about the
adequacy of the plaintiff’s evidence with respect to two
of the elements of a product liability claim.3 First, the
defendants argued that the plaintiff did not produce
evidence that his vehicle had a defect because the plain-
tiff’s proposed expert, a fire investigator, was not quali-
fied to render an opinion about automobile defects and,
in any event, declined to offer an opinion about whether
the vehicle was defective. According to the defendants,
the plaintiff’s claims involved an alleged defect in a
complex automobile engine, and, thus, the plaintiff was
required to present expert testimony to establish a
prima facie case. Second, the defendants argued that
the plaintiff did not produce competent evidence to
establish that the alleged defect in his vehicle proxi-
mately caused his injuries, which, according to the
plaintiff’s own pleadings, might have been related to a
preexisting condition.
The plaintiff responded to these arguments in his
memorandum in opposition to the defendants’ summary
judgment motion. As to the first argument, the plaintiff
acknowledged that he was required to present expert
testimony to prove the existence of a defect but asserted
that he had sufficient expert testimony to demonstrate
that a specific defect in the vehicle’s fuel line caused
the fire. The plaintiff alleged, in essence, that a fire
investigator inspected both the plaintiff’s vehicle and
an exemplar, and concluded that ‘‘plastic release tab
clips on the gas line and fuel lines and/or gaskets’’ were
‘‘flimsy’’ and ‘‘ultimately failed,’’ likely causing the fire.
The plaintiff attached three exhibits to support his argu-
ments: (1) an affidavit from Morris; (2) a portion of
Morris’ deposition testimony; and (3) reports prepared
by Morris in connection with his inspection of the plain-
tiff’s vehicle and the exemplar. Each of the exhibits
served to reinforce Morris’ conclusions about the exis-
tence of a specific defect. As to the defendants’ second
argument, the plaintiff argued that he did not need
expert testimony to prove the proximate cause element
of a product liability claim because there was sufficient
circumstantial evidence, namely, his own eyewitness
testimony, to support his claim that the alleged defect
in the vehicle caused his injuries.
The trial court granted the defendants’ summary judg-
ment motion. In its memorandum of decision, the trial
court concluded that the plaintiff’s claim of defect,
which involved an allegedly defective complex automo-
bile engine, required the plaintiff to present expert testi-
mony. Although the plaintiff proposed Morris as an
expert, the trial court determined that Morris lacked
the required, relevant expert credentials ‘‘[b]ecause
. . . Morris expressly disavow[ed] any expertise in any
area outside of origin and cause fire investigations and
[did] not offer an opinion that the vehicle in question
was defectively designed or manufactured . . . .’’ With
respect to the issue of proximate cause, the trial court
concluded that, ‘‘[w]ithout this expert testimony, a jury
would be unable to determine whether the allegedly
defective condition of the vehicle was the proximate
cause of the plaintiff’s harm.’’ As a result, the trial court
determined that the plaintiff did not present competent
evidence to create a genuine issue of material fact and
therefore granted the defendants’ motion for summary
judgment and rendered judgment thereon for the
defendants.
The plaintiff appealed from the judgment of the trial
court to the Appellate Court. On appeal, the plaintiff
principally argued that he could prove his product liabil-
ity claims based on an unspecified defect under the
malfunction theory and without expert testimony.
White v. Mazda Motor of America, Inc., supra, 139
Conn. App. 46–47 n.9. The defendants objected to the
plaintiff’s reliance on the malfunction theory on the
ground that the plaintiff did not raise this theory in the
trial court. Id., 46 n.9. The defendants further argued
that the trial court properly granted their motion for
summary judgment because the plaintiff had failed to
proffer expert evidence to support his claims, which
involved a complex product. See id., 48–49.
The Appellate Court affirmed the trial court’s judg-
ment, with one judge dissenting. Id., 51; see also id.(West, J., dissenting). A majority of the Appellate Court
panel concluded, like the trial court, that the plaintiff’s
specific defect claims required expert testimony
because of the complex nature of the product at issue
and that the plaintiff failed to produce this evidence.
See id., 49–51. In reaching its conclusion, the Appellate
Court majority declined to address the plaintiff’s claim
that he alternatively could prove the existence of an
unspecified defect under the malfunction theory. Id.,46–47 n.9. The Appellate Court majority determined
that the plaintiff failed to raise this theory of liability
in the trial court and, therefore, did not preserve it
for appellate review. Id., 47 n.9. The dissenting judge
concuded that the plaintiff sufficiently raised the mal-
function theory in the trial court, albeit indirectly, and
proceeded to address the merits of that claim. Id., 53–54
(West, J., dissenting). The dissenting judge further con-
cluded that the plaintiff had established a prima facie
case under the malfunction theory and that he did not
need expert testimony to prove this claim under the
facts of the case. Id., 63 (West, J., dissenting). This
certified appeal followed.
II
The plaintiff claims that the Appellate Court incor-
rectly concluded that he failed to raise a claim based
on the malfunction theory in the trial court. Specifically,
the plaintiff asserts that he provided sufficient notice
of a claim under the malfunction theory in his memoran-
dum in opposition to the defendants’ motion for sum-
mary judgment, at oral argument on the motion, and in
his motion for reargument. In response, the defendants
assert that the plaintiff relied exclusively on the specific
defect theory in his pleadings and his memorandum in
opposition to the motion for summary judgment and,
therefore, did not raise a claim of an unspecified defect
under the malfunction theory. We agree with the
defendants.
A
Our appellate courts, as a general practice, will not
review claims made for the first time on appeal. We
repeatedly have held that ‘‘[a] party cannot present a
case to the trial court on one theory and then seek
appellate relief on a different one . . . .’’ (Internal quo-
tation marks omitted.) Council v. Commissioner of
Correction, 286 Conn. 477, 498, 944 A.2d 340 (2008).
‘‘[A]n appellate court is under no obligation to consider
a claim that is not distinctly raised at the trial level.
. . . [B]ecause our review is limited to matters in the
record, we [also] will not address issues not decided by
the trial court.’’4 (Citations omitted; internal quotation
marks omitted.) Burnham v. Karl & Gelb, P.C., 252
Conn. 153, 170–71, 745 A.2d 178 (2000); see also Practice
Book § 60-5. ‘‘The requirement that [a] claim be raised
distinctly means that it must be so stated as to bring
to the attention of the court the precise matter on which
its decision is being asked.’’ (Emphasis in original; inter-
nal quotation marks omitted.) State v. Colon, 82 Conn.
App. 658, 659, 847 A.2d 315, cert. denied, 269 Conn. 915,
852 A.2d 745 (2004); see, e.g., McKiernan v. Caldor,
Inc., 183 Conn. 164, 166, 438 A.2d 865 (1981) (issue
‘‘briefly suggested’’ in trial court is not distinctly raised).
The purpose of our preservation requirements is to
ensure fair notice of a party’s claims to both the trial
court and opposing parties. See, e.g., State v. Ross,
269 Conn. 213, 335–36, 849 A.2d 648 (2004). ‘‘These
requirements are not simply formalities. They serve to
alert the trial court to potential error while there is still
time for the court to act. . . . Assigning error to a
court’s evidentiary rulings on the basis of objections
never raised at trial unfairly subjects the court and the
opposing party to trial by ambush.’’ (Internal quotation
marks omitted.) State v. Johnson, 289 Conn. 437, 461,
958 A.2d 713 (2008).
To properly raise a theory of liability in the trial
court, a party must articulate it in advance, as an ‘‘early
warning,’’ so that an opposing party may ‘‘frame its
presentation of evidence’’ accordingly. Sorrentino v.
All Seasons Services, Inc., 245 Conn. 756, 766, 717 A.2d
150 (1998). ‘‘The requirement that claims be raised
timely and distinctly also recognizes that counsel
should not have the opportunity to surprise an opponent
by interjecting a claim when opposing counsel is no
longer in a position to present evidence against such a
claim.’’ Swerdloff v. AEG Design/Build, Inc., 209 Conn.
185, 189, 550 A.2d 306 (1988). Parties will naturally base
their discovery strategy and litigation decisions on the
claims raised by opposing parties. It would be patently
unfair for a plaintiff to plead his claims under one theory
of liability, only to shift to a new, alternative theory on
appeal, well after the close of discovery, thus preventing
or hindering the defendant from gathering facts relating
to the plaintiff’s new claims. See, e.g., id.; cf. Council
v. Commissioner of Correction, supra, 286 Conn. 498.
B
To put the defendants on notice that the plaintiff
intended to pursue an alternative theory of liability
under the malfunction theory, the plaintiff needed to
plead this theory in his amended complaint. The plead-
ings determine which facts are relevant and frame the
issues for summary judgment proceedings or for trial.
See, e.g., Doublewal Corp. v. Toffolon, 195 Conn. 384,
390–91, 488 A.2d 444 (1985); Recall Total Information
Management, Inc. v. Federal Ins. Co., 147 Conn. App.
450, 456, 83 A.3d 664, cert. granted, 311 Conn. 925, 86
A.3d 469 (2014). ‘‘The principle that a plaintiff may
rely only [on] what he has alleged is basic. . . . It is
fundamental in our law that the right of a plaintiff to
recover is limited to the allegations [in] his complaint.’’
(Internal quotation marks omitted.) Kaddah v. Com-
missioner of Correction, 299 Conn. 129, 140, 7 A.3d
911 (2010). ‘‘A complaint must fairly put the defendant
on notice of the claims . . . against him. . . . The pur-
pose of the complaint is to limit the issues to be decided
at the trial of a case and is calculated to prevent surprise.
. . . Only those issues raised by the [plaintiff] in the
latest complaint can be tried before the jury.’’ (Internal
quotation marks omitted.) Gilbert v. Middlesex Hospi-
tal, 58 Conn. App. 731, 734, 755 A.2d 903 (2000), quoting
Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557–58,
525 A.2d 954 (1987).5
A product liability claim under the malfunction theory
is distinct from an ordinary product liability claim. The
distinction lies in whether the plaintiff is relying on
direct evidence of a specific defect (an ordinary claim)
or circumstantial evidence of an unspecified defect (a
malfunction theory claim). To establish a product liabil-
ity claim, ‘‘a plaintiff must prove that: (1) the defendant
was engaged in the business of selling the product; (2)
the product was in a defective condition unreasonably
dangerous to the consumer or user; (3) the defect
caused the injury for which compensation was sought;
(4) the defect existed at the time of the sale; and (5) the
product was expected to and did reach the consumer
without substantial change in condition.’’ (Internal quo-
tation marks omitted.) Metropolitan Property & Casu-
alty Ins. Co. v. Deere & Co., supra, 302 Conn. 131. Ordi-
narily, a plaintiff relies on direct proof of a specific
manufacturing or design defect to prove his product
liability claim, that is, evidence directly demonstrating
that some part of a product was either defectively manu-
factured or designed and that the defectively designed
or manufactured part caused the product to fail. See
id. In some cases, however, a product malfunction
causes the loss or destruction of the product, leaving
the parties without direct evidence of the product’s
condition. Id., 131–32. This can leave the plaintiff with-
out direct evidence to establish his claim. Id., 132. The
malfunction theory allows a plaintiff to establish the
existence of a defect at the time of sale or distribution
through circumstantial evidence supporting an infer-
ence that an unspecified defect most likely caused the
accident by virtue of the fact that other possible causes
of the accident are absent. See id., 133–34. The plaintiff
in the present case, however, did not reference the
malfunction theory in his pleadings, nor did he present
any allegations relative to its elements. Instead, he
pleaded only a specific defect theory based on his asser-
tion that a defect in the vehicle’s fuel system caused
the incident that resulted in his injuries.
To properly plead a product liability claim under the
malfunction theory, the plaintiff was required to at least
claim in the pleadings that some unspecified defect
caused the plaintiff’s harm and to allege facts tending to
establish the malfunction theory’s two basic elements,
namely, ‘‘that (1) the incident that caused the plaintiff’s
harm was of a kind that ordinarily does not occur in
the absence of a product defect, and (2) any defect
most likely existed at the time the product left the
manufacturer’s or seller’s control and was not the result
of the reasonably possible causes not attributable to
the manufacturer or seller.’’ Id., 139–40.
The plaintiff had ample notice that he needed to at
least plead and prove these two basic elements to estab-
lish a malfunction theory claim. Although this court
had not explored the contours of the malfunction theory
before the plaintiff filed his amended complaint,6 deci-
sions of the Appellate and Superior Courts already had
identified and discussed these elements. For example,
as early as 1979, the Appellate Session of the Superior
Court had explained that a plaintiff could establish the
existence of a product defect at the time of sale, even
in the absence of direct evidence, with ‘‘circumstantial
evidence’’ of ‘‘some unspecified dangerous condition’’
and evidence eliminating other possible causes of the
accident. Liberty Mutual Ins. Co. v. Sears, Roebuck &
Co., 35 Conn. Supp. 687, 691, 406 A.2d 1254, cert. denied,
177 Conn. 754, 399 A.2d 526 (1979). Subsequently, in
Living & Learning Centre, Inc. v. Griese Custom
Signs, Inc., 3 Conn. App. 661, 491 A.2d 433 (1985), the
Appellate Court agreed, explaining: ‘‘It is not necessary
that the plaintiff in a strict tort action establish a specific
defect as long as there is evidence of some unspecified
dangerous condition. In the absence of other identifi-
able causes, evidence of malfunction is sufficient evi-
dence of a defect under § 402A of the [Restatement
(Second)] of Torts.’’ Id., 664. A Superior Court decision
issued just two years before the plaintiff filed his
amended complaint in the present case set forth the
basic requirements of the malfunction theory in some
detail, even quoting from the Restatement (Third) of
Torts to explain the two essential elements of a claim:
‘‘[I]t may be inferred that the harm . . . was caused
by a product defect . . . without proof of a specific
defect, when the incident . . . (a) was of a kind that
ordinarily occurs as a result of [a] product defect; and
(b) was not, in the particular case, solely the result of
causes other than [a] product defect existing at the
time of sale or distribution.’’ (Emphasis added; internal
quotation marks omitted.) Fallon v. Matworks, 50 Conn.
Supp. 207, 215, 918 A.2d 1067 (2007), quoting Restate-
ment (Third), Torts, Product Liability § 3, p. 111 (1998).
Despite decades of judicial guidance, the plaintiff did
not address the basic elements of a malfunction theory
claim in his pleadings before the trial court. As a result,
nothing in the plaintiff’s complaint provided the defen-
dants with notice that they needed to gather facts during
discovery to defend against this theory of liability. See,
e.g., Montanaro v. Gorelick, 73 Conn. App. 319, 324,
807 A.2d 1083 (2002) (‘‘[t]he pleadings [must] provide
sufficient notice of the facts claimed and the issues to
be tried [so as to avoid] surprise or prejudice [to] the
opposing party’’ [internal quotation marks omitted]).
The plaintiff does not argue in his brief to this court
that he raised the claim in his amended complaint. Nor
did the plaintiff seek leave to further amend his com-
plaint to include this theory. Perhaps, if given notice,
the defendants could have identified facts during dis-
covery to establish other possible causes of the acci-
dent. If the plaintiff did not produce evidence to negate
these other possible causes, the plaintiff’s case would
fail at the summary judgment stage. The plaintiff’s fail-
ure to plead a malfunction theory claim in his complaint
deprived the defendants of an opportunity to discover
facts related to the claim, and it deprives the court of
having those additional facts to aid in its decision. Hav-
ing failed to provide notice to the trial court and the
defendants of this alternative theory in his amended
complaint by pleading the necessary facts, the plaintiff
did not raise it ‘‘timely and distinctly . . . .’’ Swerdloff
v. AEG Design/Build, Inc., supra, 209 Conn. 189.
To be sure, the plaintiff was not required to plead a
separate malfunction theory count in his complaint, but
this does not relieve him of his burden of pleading
facts to raise this theory in his complaint as part of his
product liability claims. The malfunction theory is not
an independent tort but an evidentiary principle that
alters the plaintiff’s ordinary burden of proof in a prod-
uct liability action. See Metropolitan Property & Casu-
alty Ins. Co. v. Deere & Co., supra, 302 Conn. 134. It does
so in two ways: (1) lowering the burden by removing the
requirement that a plaintiff present direct evidence of
a defect; and (2) raising it by requiring that a plaintiff
negate other possible causes of the accident. See id.,133–34. A plaintiff must allege facts to put the trial court
and the defendant on notice that the plaintiff intends to
pursue his claim under this alternative burden of proof.
Our res ipsa loquitur jurisprudence is instructive.
Even though res ipsa loquitur is not an independent
cause of action, a plaintiff must—because Connecticut
is a fact pleading jurisdiction—allege facts in his com-
plaint to raise a res ipsa loquitur theory of negligence,
especially when the plaintiff also asserts a negligence
claim through allegations of specific acts of negligence.
The Appellate Court addressed this issue in Gilbert v.
Middlesex Hospital, supra, 58 Conn. App. 731. In that
case, the plaintiff’s amended complaint included allega-
tions of specific acts of negligence but did not contain
allegations that would establish the elements of res ipsa
loquitur. Id., 733–34. The Appellate Court explained that
‘‘[a] res ipsa loquitur instruction is not appropriate
[when] the plaintiff is not relying solely on circumstan-
tial evidence, but instead alleges and introduces into
evidence specific acts of negligence by the defendant.’’
(Internal quotation marks omitted.) Id., 734–35.
‘‘Because the amended complaint contained no allega-
tions concerning res ipsa loquitur, and because the
plaintiff offered direct evidence of the defendants’ negli-
gence at trial, an instruction on res ipsa loquitur was
not warranted.’’ (Emphasis added.) Id., 735.
This commonsense principle is reflected in numerous
decisions of the Superior Court. For instance, in Benoit
v. Athanasiadis, Superior Court, judicial district of New
London, Docket No. CV-12-6013227 (November 16,
2012) (55 Conn. L. Rptr. 22), the court explained: ‘‘Res
ipsa loquitur certainly is not an independent cause of
action but only a doctrine of evidence and thus not
separate from a negligence claim. But certainly a claim
of negligence can be based on a statement of facts and
circumstances giving rise to the application of res ipsa
loquitur. In fact if a plaintiff is relying on a negligence
claim framed in this way, because we are a fact plead-
ing state, the plaintiff must set forth factual allegations
raising this doctrine.’’ (Emphasis added; internal quo-
tation marks omitted.) Id. Other decisions state the
same principle. See, e.g., Hargrove v. Price Chopper,
Superior Court, judicial district of Hartford, Docket No.
CV-12-6028482-S (October 4, 2013) (56 Conn. L. Rptr.
895, 896); Smith v. Waterbury Hospital, Superior Court,
judicial district of Waterbury, Docket No. CV-01-
0168363 (March 7, 2003) (34 Conn. L. Rptr. 262). Indeed,
the Superior Court has rendered judgment against a
plaintiff who failed to plead facts raising a res ipsa
loquitur claim, even though the plaintiff attempted to
raise that theory for the first time in opposition to a
motion for summary judgment. See Santiago v. Hospi-
tal of St. Raphael’s, Superior Court, judicial district of
New Haven, Docket No. CV-05-4010822-S (July 25, 2008)
(rendering judgment against plaintiff when ‘‘the plaintiff
failed to plead res ipsa loquitur in his revised complaint,
making it an improper issue for [the] court to con-
sider’’).7
The reason for this is obvious. If a plaintiff pleads
only a specific negligence claim, and does not also plead
res ipsa loquitur, the defendant has no reason to believe
that the plaintiff’s claim is anything other than a garden
variety specific negligence claim. So too it is with prod-
uct liability claims based on the malfunction theory.
That explains why, in the present case, the defendants
and the trial court addressed only a claim based on a
specific defect. Neither the defendants nor the court
had any reason to believe that the plaintiff also was
raising a malfunction theory claim. He did not plead it
in his complaint.
If the plaintiff sought to establish his claim using the
malfunction theory, our rules of practice required him
either to raise it in his complaint or to obtain consent
or leave to raise it in a further amended complaint. See,
e.g., Practice Book § 10-60 (a). The plaintiff did neither.
The plaintiff having failed to allege facts in his amended
complaint establishing a claim based on the malfunction
theory, the plaintiff’s amended complaint did not com-
ply with our pleading requirements.
C
Although the plaintiff did not plead the malfunction
theory in his complaint, the plaintiff maintains that he
properly raised it during the summary judgment pro-
ceedings in the trial court. We disagree that the plaintiff
could properly raise a new, alternative theory of liability
for the first time in opposition to a motion for summary
judgment. In any event, a review of the summary judg-
ment proceedings in the trial court demonstrates that
the plaintiff did not raise a malfunction theory claim
during those proceedings.
1
The plaintiff first asserts that he raised the malfunc-
tion theory in his memorandum in opposition to the
defendants’ motion for summary judgment. We reject
this assertion for two reasons.
First, the plaintiff could not properly raise an entirely
new, alternative theory of liability for the first time in
his opposition to the defendants’ summary judgment
motion when he failed to plead this theory in his com-
plaint or put the defendants on notice that he intended
to rely on it by further amending his complaint. See,
e.g., Bellemare v. Wachovia Mortgage Corp., 94 Conn.
App. 593, 607, 894 A.2d 335 (2006) (explaining that
reviewing court need not address claim raised ‘‘for the
first time in a pleading filed in opposition to the defen-
dant’s motion for summary judgment’’), aff’d, 284 Conn.
193, 931 A.2d 916 (2007); Moeller v. St. Luke’s Founda-
tion, Inc., Superior Court, judicial district of Stamford-
Norwalk, Docket No. X-08-CV-040199334-S (June 27,
2007) (‘‘[a] court is not required to reach the merits
of a claim or argument raised for the first time in a
memorandum in opposition to summary judgment’’
when ‘‘that theory is not pleaded in the complaint’’);
Bank of New York v. Conway, 50 Conn. Supp. 189, 198
n.5, 916 A.2d 130 (2006) (same); see also Santiago v.
Hospital of St. Raphael’s, supra, Superior Court, Docket
No. CV-05-4010822-S (rendering judgment against ‘‘the
plaintiff [when he] failed to plead res ipsa loquitur in
his revised complaint, making it an improper issue for
[the] court to consider’’). If the plaintiff intended to rely
on the malfunction theory in opposition to summary
judgment, he was required to plead that theory in his
amended complaint or seek leave to further amend his
complaint. Having failed to do this, he could not prop-
erly raise it for the first time in his opposition to the
defendants’ summary judgment motion.
Second, even if we suspend our pleading rules for
the sake of argument, a review of the plaintiff’s memo-
randum in opposition to the defendants’ summary judg-
ment motion reveals that he did not raise a claim of an
unspecified defect under the malfunction theory and,
again, did not even address its elements. The plaintiff
asserts that he raised the malfunction theory when he
argued that he could use circumstantial evidence to
prove that the alleged specific defect proximately
caused his injuries. The plaintiff’s proximate cause
argument does not, however, establish or even relate
to a malfunction theory claim. Proximate cause is a
separate element of a product liability claim, distinct
from the elements established by the malfunction the-
ory. As we previously noted, the malfunction theory
serves as proof of two elements of a product liability
claim: the existence of a defect and that the defect
existed when the product was sold or distributed. Met-
ropolitan Property & Casualty Ins. Co. v. Deere & Co.,
supra, 302 Conn. 134. Establishing proximate cause
does not serve as proof of either of those elements. See
id., 134–35 and n.6. Thus, in arguing that he could prove
proximate cause with circumstantial evidence, the
plaintiff did not also raise a claim of some unspecified
defect under the malfunction theory, nor did the plain-
tiff present evidence to negate other possible causes.
The plaintiff argued only that his own eyewitness testi-
mony about the circumstances of how the incident in
question occurred could support a finding that the
alleged specific defect in his vehicle was the cause of
his injuries. Accordingly, the plaintiff did not raise a
malfunction theory claim in his memorandum in opposi-
tion to the defendants’ summary judgment motion.8
2
The plaintiff next claims that he properly raised the
malfunction theory during oral argument on the defen-
dants’ summary judgment motion, when plaintiff’s
counsel suggested that ‘‘an explosion in a car’’ was
‘‘evidence of a patent defect.’’ We disagree.
Even if we assume that this passing suggestion actu-
ally referenced a malfunction theory claim, it was too
little, too late, for several reasons. First, an issue must
be ‘‘distinctly raised’’ before the trial court, not just
‘‘briefly suggested . . . .’’ McKiernan v. Caldor, Inc.,
supra, 183 Conn. 166. This comment at oral argument
in the trial court is hardly proper notice to the court
and counsel of the significance of the change to the
expressed theory of the plaintiff’s case. To introduce a
new, entirely separate alternative theory of liability into
the case, the plaintiff must plead it in his amended
complaint, not just mention it in passing in a few senten-
ces at oral argument. Cf. University of Connecticut v.
Freedom of Information Commission, 303 Conn. 724,
731, 36 A.3d 663 (2012) (noting ‘‘this court’s policy not
to consider arguments inadequately briefed and raised
substantively for the first time at oral argument’’). Sec-
ond, the brief suggestion of the plaintiff’s counsel is
not enough to avoid summary judgment; rather, the
plaintiff must come forward with real evidence, not
mere assertions. See, e.g., Fuchs v. Allstate Ins. Co., 96
Conn. App. 284, 289, 899 A.2d 709 (2006). Third, it would
be unfair to the defendants to consider this claim when
the defendants had no meaningful chance to discover
facts related to, and make a record to defend against, an
entirely different theory of liability. Finally, we cannot
consider this claim because the record is inadequate
for our review. This court does not consider claims
raised for the first time during an oral argument in the
trial court when the trial court did not address the issue
in its decision and the appellant failed to obtain an
articulation from the trial court. See, e.g., Willow
Springs Condominium Assn., Inc. v. Seventh BRT
Development Corp., 245 Conn. 1, 52–53, 717 A.2d 77(1998). The trial court in the present case did not
address or rule on the plaintiff’s alleged malfunction
theory claim in its memorandum of decision. The trial
court concluded only that the plaintiff was required to
present expert testimony to prove his claim of a specific
defect and to prove proximate cause. Neither of those
conclusions relate to a claim of an unspecified defect
under the malfunction theory, which the defendant did
not raise. Tellingly, the plaintiff did not move for an
articulation despite the absence of any mention of his
supposed alternative theory by the trial court. One
would expect that, if the plaintiff truly believed that he
raised his malfunction theory claim in the trial court,
he would have been surprised when the trial court
ignored this theory in its memorandum of decision,
which, in turn, would have prompted him to move for an
articulation. His silence in this regard speaks volumes.9
3
Lastly, the plaintiff asserts that he raised this claim
in his motion for reargument, which he filed after the
trial court granted the defendants’ motion for summary
judgment. This argument fails for the same reasons that
we discussed in part II C 2 of this opinion. The plaintiff
failed to provide proper notice that he intended to use
the malfunction theory by pleading it in his amended
complaint. Raising an issue for the first time in a motion
to reargue will not preserve that issue for appellate
review. See, e.g., Chapman Lumber, Inc. v. Tager, 288
Conn. 69, 94 n.28, 952 A.2d 1 (2008) (‘‘[a] motion to
reargue . . . is not to be used as an opportunity to
have a second bite of the apple’’ [emphasis omitted;
internal quotation marks omitted]). This is especially
true when, as in the present case, the trial court denied
the plaintiff’s motion for reargument without comment,
the plaintiff did not move for articulation of the reasons
for the denial, and the plaintiff did not appeal from that
decision. See Billboards Divinity, LLC v. Commis-
sioner of Transportation, 133 Conn. App. 405, 410–11,
35 A.3d 395, cert. denied, 304 Conn. 916, 40 A.3d 783(2012).
For the foregoing reasons, we conclude that the plain-
tiff did not properly raise a malfunction theory of liabil-
ity in the trial court and, therefore, did not preserve it
for appellate review. Accordingly, the Appellate Court
properly declined to review the plaintiff’s malfunction
theory claim on appeal.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and VERTEFEUILLE, Js., concurred.
1
The plaintiff also named Central Ford-Mercury, Inc., as a defendant
but subsequently withdrew the action with respect to that defendant. We
hereinafter refer to Mazda and Cartwright Auto, LLC, collectively as the
defendants.
2
The plaintiff’s automobile insurance company covered the loss of the
vehicle, which was badly damaged as a result of the fire.
3
The defendants also challenged the plaintiff’s claim under the failure to
warn theory of liability, but the trial court’s conclusions as to that aspect
of the summary judgment motion are not before us in this appeal.
4
Although there are exceptions to this general rule; see, e.g., Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311
Conn. 123, 144–61, 84 A.3d 840 (2014); none applies in the present case.
5
In response, the dissent notes that consideration of a motion for summary
judgment is not limited to the pleadings but extends to the record before
the court. We agree that a court’s ability to review the evidence, in order
to determine whether a genuine issue of fact exists, is not limited to the
pleadings. As our law makes clear, however, a plaintiff’s theories of liability,
and the issues to be tried, are ‘‘limited to the allegations [in the] complaint.’’
(Internal quotation marks omitted.) Kaddah v. Commissioner of Correction,
supra, 299 Conn. 140; see also Doublewal Corp. v. Toffolon, supra, 195 Conn.
390–91. The dissent’s position that the plaintiff may rely on a theory of
liability that he has not raised in his amended complaint but has raised for
the first time in an opposition to a motion for summary judgment ignores
our foundational pleading requirements. Allowing a plaintiff to rely on a
theory that he has failed to raise in his complaint would silently abrogate
our rules of pleading and, indeed, the very purpose of having pleadings in
the first place. The dissent’s position also circumvents our rules of practice
governing the amendment of pleadings, which generally require a plaintiff
to obtain the consent of the opposing party or leave of the trial court before
introducing new facts and theories into a case through an amended pleading.
See, e.g., Practice Book § 10-60 (a). A plaintiff cannot properly interject a
new theory of liability into the case after the close of pleadings without
amending or varying his complaint.
6
We more fully examined the malfunction theory in Metropolitan Prop-
erty & Casualty Ins. Co. v. Deere & Co., supra, 302 Conn. 123, a decision
released after the trial court’s decision in the present case.
7
The complaint in Adkins v. Sodexho, Inc., Superior Court, judicial district
of New Haven, Docket No. 480783 (April 6, 2004) (36 Conn. L. Rptr. 688,
690 nn.1 and 2), provides an example of how to plead both a specific
negligence and a res ipsa loquitur theory within a single count of negligence.
In that case, the trial court, in discussing the plaintiff’s claims, reproduced
in its memorandum of decision two paragraphs of the plaintiff’s negligence
count: one paragraph alleged a number of specific acts of negligence, and
the other paragraph alleged a res ipsa loquitur claim. See id. The later
paragraph alleged: ‘‘The [p]laintiff hereby pleads [r]es [i]psa [l]oquitur, not
intending to be bound by the specific allegations of negligence set forth in
[the preceding paragraph] . . . .’’ Id., 690 n.2. The plaintiff then went on to
allege facts addressing each and every element of a res ipsa loquitur claim.
See id. Similarly, if a plaintiff intends to rely on both a specific defect theory
and an unspecified defect theory under the malfunction theory, it is possible
and necessary to plead both theories within a single product liability count.
8
The dissent tries to bootstrap its novel pleading theory by relying on
the fact that the plaintiff cited two particular cases in support of his argu-
ment, namely, Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 219,
694 A.2d 1319 (1997), and Lewis v. North American Philips Corp., Superior
Court, judicial district of New Haven, Docket No. CV-91-0315792-S (April 6,
1994). The dissent, however, mistakenly overlooks the fact that the plaintiff
did not cite either of these cases for the proposition that he could rely on
the malfunction theory to prove the existence of a defect. Instead, he cited
them only for the limited purpose of supporting his argument that he could
use circumstantial evidence to prove proximate cause. In fact, the plaintiff’s
citation to these cases without mention of the malfunction theory further
demonstrates that he did not intend to embrace that theory. Indeed, the
plaintiff’s own argument in his memorandum in opposition, to which the
dissent cites, demonstrates that the plaintiff intended to raise only a specific
defect theory. In his memorandum in opposition, the plaintiff stated that
he was ‘‘required to provide some form of evidence, including expert testi-
mony, to quantify the precise product defect.’’ (Emphasis added.) Having
argued that he was required to prove a ‘‘precise product defect’’; (emphasis
added); while citing to Potter, one cannot seriously interpret his citation to
Potter as also raising a claim of an unspecified defect under the malfunction
theory. We require the trial court and opposing parties to address only those
arguments that a plaintiff actually raises, not every possible argument that
a plaintiff could have made but did not.
9
The dissent’s repeated assertion that the plaintiff raised the malfunction
theory by arguing that he did not need an expert to prove proximate cause
is based on a misunderstanding of the malfunction theory. The malfunction
theory is not an alternative to expert testimony, nor is it proven simply on
the basis of the expectations of the consumer. The malfunction theory is
an alternative to proving the existence of a specific defect that is based on
the argument that a malfunction resulted from an unspecified defect in
the product because there is no other reasonably possible cause of the
malfunction. See Metropolitan Property & Casualty Ins. Co. v. Deere & Co.,
supra, 302 Conn. 139–40. In fact, we have made clear that many claims
under the malfunction theory will require expert testimony. Despite gener-
ously citing to our decision in Metropolitan Property & Casualty Ins. Co.,
the dissent leaves out the portion of that decision in which we made clear
that, ‘‘[i]f lay witnesses and common experience are not sufficient to remove
the case from the realm of speculation, the plaintiff will need to present
expert testimony to establish a prima facie case.’’ Id., 141. We further noted
that ‘‘[e]vidence of the most likely causes of [a] malfunction ordinarily will
be presented through an expert witness.’’ Id., 141 n.10. Thus, whether a
plaintiff must present expert testimony is an issue independent of the issue
of whether a plaintiff may rely on the malfunction theory. The plaintiff
therefore did not raise a malfunction theory argument merely by asserting
that he did not need to present expert testimony to prove proximate cause.
Furthermore, the dissent’s assertion that the plaintiff could prove a design
defect through the malfunction theory further demonstrates the dissent’s
misunderstanding of the malfunction theory. A design defect theory typically
is based on a claim that a product harbored a specific problem due to its
design, and such a claim is proven through a review of the plans of a product
and its exemplars. The malfunction theory, however, does not involve a claim
of a specific defect, whether the result of faulty design or manufacturing. In
other words, the malfunction theory of product liability does not depend
on a design or manufacturing defect. See, e.g., J. Hoffman, ‘‘Res Ipsa Loquitur
and Indeterminate Product Defects: If They Speak for Themselves, What
Are They Saying?,’’ 36 S. Tex. L. Rev. 353, 382 (1995) (‘‘[an] [i]ndeterminate
defect [claim] is based [on] neither a claim of manufacturing or design defect
. . . but is a mutually exclusive separate category of liability premised [on]
the plaintiff’s inability or unwillingness to specify the nature of the defect’’
[emphasis omitted]). If the plaintiff intends to prove a design defect, he
must demonstrate a faulty design. He cannot rely on the malfunction theory
to prove a design defect. To rely on a malfunction theory, in addition to a
manufacturing or design defect theory, a plaintiff must separately plead that
claim in the alternative.